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1974
High Court of Congress: Impeachment Trials,
1797-1936
William F. Swindler
William & Mary Law School
Repository Citation
Swindler, William F., "High Court of Congress: Impeachment Trials, 1797-1936" (1974). Popular Media. Paper 267.
http://scholarship.law.wm.edu/popular_media/267
Copyright c 1974 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
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High Court of Congress: Impeachment Trials, 1797-1936
by William F. Swindler
Twelve "civil officers" of the United States have
been subjected to trials on impeachment articles
in the Senate. Both colorful and colorless figures
have suffered through these trials, and the nation's
fabric has been tested by some of the trials. History
shows that impeachment trials have moved from
barely disguised political vendettas to quasi-judicial
proceedings bearing the trappings of legal trials.
MPEACHMENT-what Alexander Hamilton called
"the grand inquest of the nation"-has reached the
Senate (trial) level twelve times in American history.
It has been brought against eight judges, one former
senator, one justice of the Supreme Court, one cabinet
member, and one president of the United States. Of
these dozen instances in which bills of. impeachment
were presented by the House of Representatives, one
was dismissed for want of jurisdiction, six resulted in
acquittals (in four, because the majority to convict did
not reach the constitutionally required two thirds), four
resulted in votes to remove from office, and in one the
defendant resigned from office before the trial began.
Some thirty-four other cases of impeachment have been
considered by the House and have been determined not
to warrant further proceedings.
The House Committee on the Judiciary has produced
two useful documentary studies-I.'peachment: Selected
Materials (October, 1973) and Impeachment: Selected
Materials on Procedure (January, 1974).
The charges in the twelve impeachment trials are
outlined in the tabulation on page 427. Whether they
amounted to indictable offenses-one of the recurring
issues in the latest debates on the impeachment question
-depends not merely on a lawyer's professional analysis of each charge but also on the degree of sophistication with which each is correlated with the contemporary political passions that may have masqueraded
behind the formal articles. It may be suggested, in fact,
that the trial of Andrew Johnson represented a watershed. The blatant partisan plot scarcely concealed, in
his case climaxed the impeachment process qua political
trial as it had been used up to that time, while the
cases since then, perhaps purged by the Johnson spec-
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tacle, appear to have rested more on objective (and
perhaps quasi-indictable) charges.
The history of impeachment as a tool in the struggle
for parliamentary supremacy in Great Britain and the
understanding of it at the time of the first state constitutions and the Federal Convention of 1787 have been
admirably researched by a leading constitutional historian, Raoul Berger, in his book published last year,
Impeachment: Some Constitutional Problems. Like
Americans, Englishmen once, but only once, carried the
political attack to; the head of state himself. In that
encounter Charles I lost his case as well as his head. The
decline in the quality of government under the Commonwealth thereafter, like the inglorious record of
American government under the Reconstruction Congresses, may have had an ultimately beneficial effect. In
England, particularly after the Glorious Revolution, the
principle of a constitutional monarchy was established.
In the United States the passing of the Radical Republican era brought a new balance to the separate and perhaps equal powers of government.
Hastings Was Caught in a Power Struggle
The use of impeachments in England was vividly impressed upon the minds of the Founding Fathers. When
the Constitutional Convention met in Philadelphia in
1787, the impeachment of Warren Hastings had been
in progress in Parliament for a full year and was
destined to continue until 1795. Hastings, the former
governor-general of India, had been caught in a power
struggle between Edmund Burke and William Pitt, with
control of India by Parliament rather than the East India
Company as the ultimate goal, and the attack on the
former governor was one means to,that end. After more
than nine years of harassment, Hastings was finally acquitted on every article.
As a political trial of the first magnitude, the Hastings
case would have appeared to the Americans as a normal
means of attacking obstacles to a political objective. In
any event, the parliamentary practice was familiar, and
several state constitutions of the Revolutionary period
had incorporated impeachment provisions. Massachusetts, New York, and Pennsylvania, in particular,
adopted procedures similar to what subsequently appeared in the first and second articles of the federal
Constitution: the House of Representatives to initiate the
process, the Senate to try the accused, and the president,
vice president, and "all civil Officers of the United
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States" identified as impeachable parties. Within a decade of the Philadelphia convention, the process was invoked for the first time.
Blount's Plans Violated Government Policy
Is a member of Congress a "civil officer of the United
States"? And, as a corollary, is a former member liable
to impeachment? As for the grounds for impeachment"Treason, Bribery, or other high Crimes and Misdemeanors"-these did not seem nearly so vague to
members of the post-Revolutionary generation as they
do to us. It was a cataclysmic age of crashing empires
and a welter of plans to build new ones, particularly in
the New World. Anyone who appeared to be caught
up in these grand designs, particularly if he failed, was
a prime prospect for being charged with one or more
of the actionable offenses.
Such a man was William Blount of Tennesseeironically, one of the delegates from North Carolina to
the Constitutional Convention. He had moved westward
in response to the lures of land speculation and the game
of playing off various colonial empires against one
other. Spain, after the peace treaty of 1783, had once
more acquired possession of Louisiana and Florida.
England plotted to get them back, and American
settlers beyond the Alleghenies, convinced that they
could do business better with English authorities in
these regions, undertook a plot to incite attacks by the
Gulf area Indians against Spanish territory in a joint
venture with the British fleet.
A letter from Blount, now a senator from Tennessee,
to James Carey, a government interpreter assigned to the
Cherokee, betrayed his interest in a plan that not only
violated the government policy of pacification of the
Indian tribes but also the neutrality and friendly relations, however tenuous, between the United States and
the two European powers. The letter was intercepted and
sent to Pres. John Adams, who on July 3, 1797, laid
it before Congress.
Three days later Samuel Sitgreaves of Pennsylvania
introduced a resolution in the House of Representatives
that Blount "be impeached of high crimes and misdemeanors." He then outlined a plan of procedure that
was endorsed by Rep. John Rutledge, Jr., who had been
an observer at the Hastings trial in London. The Hastings trial, as well as state impeachment proceedings in
Pennsylvania and South Carolina, were cited thereafter
by Sitgreaves and Rutledge as precedents for the congressional procedures in preparing for the Blount trial.
On July 8, two days after the Sitgreaves resolution,
the Senate, which had taken Blount into custody, expelled him from its membership, and the first session
of the Fifth Congress then adjourned. It was not until
the following February 7, well into the second session,
that the House formally presented the Senate with
articles of impeachment and named eleven of its members as managers of the trial. In the third session in
December of 1798, Blount, on advice of his counsel,
A graduate of the Universities of
Nebraska (LL.B.) and Missouri
(Ph.D.), William F. Swindler is
a professor of law at the College
of William and Mary. He is the
author of a three-volume study,
"Court and Constitution in the
20th Century," and the editor of
a ten-volume collection, "Sources
and Documents of U.S. Constitutions."
Thomas L Williams
Jared Ingersoll and Alexander J. Dallas of the Philadelphia bar, demurred to the jurisdiction. For the remainder
of that session Blount's lawyers and the House managers
argued the jurisdictional question. Rep. James A. Bayard of Delaware successfully refuted the demand for a
jury trial by pointing out that the Constitution vested impeachment trial power exclusively in the Senate and
that "no court of common law could give judgment of
disqualification." However, Bayard lost the following
proposal that all citizens of the United States were liable
to impeachment, it being ruled that the Constitution
stipulated precisely who were impeachable officers.
Thus the ultimate question in the jurisdictional
argument was reached: Did Blount fall into the category
of impeachables? Here the Senate's act of expulsion
proved the determinant. While it was conceded that a
person impeached might not avoid trial and punishment
by resignation, the "High Court of Impeachment" on
January 7, 1799, formally sent word to the House.: "The
court is of opinion that the matter alleged in the plea
of the defendant is sufficient in law to show that this
court ought not to hold jurisdiction of the said impeachment, and that the impeachment is dismissed."
The First Trial Set Precedents
Despite this denouement, the first impeachment trial
served several useful purposes. It established the congressional procedure, clearly relying on parliamentary
precedents in the Hastings case. It suggested continuing
liability to impeachment process after resignation. It
implied, without directly addressing itself to the proposition, that members of Congress might come under the
"civil Officers" classification. Of course, under the circumstances it never reached the question whether the
articles of impeachment made out an actionable ease
April, 1974 * Volume 60
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under congressional jurisdiction. Part of the answer to
that question, however, was to come in the next impeachment trial.
The Jeffersonian campaign to break the power of
the Federalist judiciary is a familiar story, beginning
with the test case of Marbury v. Madison, 1 Cr. 137
(1803), followed by a plan of successive impeachments
directed at specific judges and ending in the same degree of frustration in the attempts made by presidents
ever since Jefferson to alter the Supreme Court by
strategic appointments. As for the second step in the
threefold strategy, it got under way even before Chief
Justice Marshall handed down his Marbury opinion on
February 24, 1803. Three weeks earlier, Jefferson had
sent to the House a "letter and affidavits exhibiting
matter of complaint against John Pickering, district
judge of New Hampshire, which is not within executive
cognizance."
Jacob Pickering Alleged His Father's Insanity
As it had in the, Blount case, the House referred the
matter to a select committee. One of the managers in
the Blount case, Bayard of Delaware, was a member of
this new committee, which had a suspiciously antiFederalist cast-Lucas Elmendorf of New York, Joseph
H. Nicholson of Maryland, John Randolph, Jr., of
Virginia, and Samuel Tenney of New Hampshire. On
March 3, one month after the first transmittal of the
papers, Nicholson and Randolph appeared before the
Senate to inform it of Pickering's impeachment. This
being the last day of the Seventh Congress, the matter
was continued to the opening of the Eighth the following
October. Another select .committee to! prepare articles
was appointed by the House, the articles were approved
by the House as a committee of the whole on December
30, and on January 4, 1804, the Senate resolved itself
into a court of impeachment.
For most of the next two months a Senate committee
was put to work on drafting detailed rules of procedure,
a necessary step which had never been reached in
Blount's case. By March 2 everything appeared in
readiness, when a New Hampshire attorney, Robert G.
Harper, appeared as counsel for Judge Pickering's son,
Jacob, and offered a petition alleging his father's insanity
and requesting permission to submit proofs.
John Pickering was in declining health and declining
years (he would die in 1805) when he. was summoned
to the bar of Congress, and his eccentricities had long
been a matter of record. In 1801 he had suffered a
nervous breakdown and had been unable for a term to
perform his judicial duties. When he returned to the
bench, his conduct was notably erratic; he appeared frequently in an intoxicated state and was volubly profane
during the conduct of trials. Modern psychiatry might
have a ready explanation of the behavior, but for a
Congress of that time seeking a political sacrifice it
was easy to charge "loose morals and intemperate
habits" and behavior "disgraceful to his own character
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American Bar Association Journal
as a judge and degrading to the honor and dignity of
the United States."
The Senate determined, over the objection of the
House managers, once more to hear argument on a preliminary question, in this case the right of a third party
to be heard on the question of the mental competence of
the accused. After receiving the testimony quasi in
camera, the Senate proceeded to the trial itself, but as
Judge Pickering was not represented in person or by
counsel, the proceedings consisted largely of the uncontested presentation of the evidence by the managers. The
Senate declined to postpone judgment until confirmation
of the insanity of the accused. It declared that it would
follow English precedent (including "the very celebrated
case of Warren Hastings") and pronounce judgment on
each of the articles. On March 4, 1804, the defendant
was found guilty on all of these, and the Senate moved
to declare him removed from office.
So far as impeachment powers are concerned, the
Pickering trial emphasized the continuity of British political and legal precedents and premises. So far as demonstrating the impropriety of impeachment as a means of
removal of manifestly unfit officeholders, the case
dramatized a problem with which state judicial temoval
commissions have only begun to deal in the twentieth
century. So far as launching the Jeffersonian campaign
against the Federalist judiciary, the outcome was insubstantial, and of necessity, Congress moved on at once
to bigger game-a Supreme Court justice.
Chase Was an Anti-Federalist Target
As the Pickering proceeding overlapped Marbury, so
the attack on the Supreme Court overlapped the Pickering case in 1804. On January 5 Representative Randolph
of Virginia delivered a speech concerning the need for
"preserving unpolluted the fountains of justice" and
moved that a committee be appointed to "inquire into
the official conduct of Samuel Chase, one of the associate justices of the Supreme Court of the United States"
and to determine whether his conduct warranted "the
interposition of the constitutional power of this House."
The jurist from Maryland was a far more provocative
target for anti-Federalist fire. An aggressive activist
from his youthful service in the Continental Congress,
where he had excoriated moderates of all persuasions, he
had criticized the new Constitution for fostering an oligarchic rather than democratic form of government. If
this sounded almost Jeffersonian, Chase's true character
of irascible prejudice became clearer with the passing
years. His bullying conduct as chief judge of the Maryland criminal court Jhad once -led to, a move to oust him
from the bench. It won a majority vote but fell short of
the two-thirds requirement. His nomination to the
Supreme Court in 1796 had been confirmed by the
Senate without debate, but also without notable enthusiasm from the profession. Still, his incisive opinion
hi Ware v. Hylton, 3 Dallas 191 (1796), asserting the
supremacy of treaty law over state law, and his opinion
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in Calder v. Bull, 3 Dallas 386 (1798), limiting the ex
post facto clause to criminal law, established landmarks
of constitutional law that still remain.
Chase was a capable jurist but an irrepressible politician, and his intolerant partisanship ultimately gave
the Jeffersonians the chance they were seeking. His
electioneering for John Adams during his first year on
the Court was followed by his all-out endorsement of
the Alien and Sedition Acts when they were before
Congress. His highly prejudicial conduct of the trial of
a Jeffersonian editor. James Callendar, shocked even
the Federalists. He was charged with pressuring federal
marshals to exclude Jeffersonians from juries that tried
sedition cases, and he repeatedly delivered harangues
from the bench, the climax being an address to a Baltimore grand jury in which he condemned democracy
and the Republican (later Democratic) Party as enemies of established government.
Fugitive Burr Presided over the Senate
Jefferson himself, as commander-in-chief of the antijudiciary campaign, sent the printed report of Chase's
Baltimore grand jury address to Nicholson, one of the
House managers of the Pickering impeachment, as a
signal to begin proceedings. Another Federalist judge,
Richard Peters of Pennsylvania, was also named for
investigation, but no charges were brought against him.
On March 12, 1804-the day Pickering was convicted
-the
House approved its committee recommendation
for proceeding against Chase, and the action was reported to the Senate the following day. Eight articles,
climaxing in the Baltimore speech, eventually were presented to the Senate, with reservation of right to add to
these later. Senate action was deferred until November
when the second session of the Eighth Congress began.
The spring, summer, and fall of 1804 were taken up
with avid public discussion of the forthcoming trial,
which was generally recognized as a test of political
power over the judicial branch of government. The
political prospects were formidable. With twenty-three
of thirty-four Senate votes needed for conviction, the
anti-Federalists nominally could claim at least twentyfive. An additional bizarre fact was the presence of
Vice President Aaron Burr, a fugitive from New York
law for his slaying of Alexander Hamilton in a duel the
previous summer, as presiding officer. His term had
only a few more weeks to run, but Jefferson sought his
return to preside over the Chase trial on the assumption
that an anti-Federalist presiding officer would further
cement the prosecution.
The antijudiciary strategy, however, tended to overreach itself. Burr proved to be; a ferocious but fair
presiding officer, "with the dignity and impartiality of
an archangel but with the rigor of a devil," who won
a vote of appreciation even from his critics at the end
of the trial. In addition, Chase prepared to fight the
charges vigorously and engaged a battery of leading
members of the bar as his counsel, including Luther
Martin and Philip Barton Key of Maryland. Joseph
Hopkinson of Pennsylvania, Charles Lee of Virginia,
former United States attorney general under Washington and Adams, and Jacob Pickering's lawyer, Robert
G. Harper of New Hampshire.
Chase did nothing to help his own case in appearing
at the equivalent of the preliminary hearing when he
came before Burr in response to the Senate's invitation
to make answer to the charges. The justice denigrated
his accusers as "puling in their nurses' arms whilst I
was contributing my utmost to lay the groundwork of
American liberty," one of several utterances for which
Burr called him to order. Confident that they had a
strong case, the anti-Federalists prepared to make it
a spectacle as well. The benches in the Senate chamber
were covered in crimson, special boxes were installed
for all the parties to the trial, and sections were reserved for members of the government, the diplomatic
corps, and ladies of the members' families. On February 5, 1805, the spectacle began
Neither Chase nor his counsel denied the facts in the
charges but directed their defense at the proposition that
"high Crimes and Misdemeanors" were of necessity
indictable acts. Hopkinson pointed out that a grand
jury's power to indict did not give it latitude "to make
anything indictable which they' might disapprove," and
added that "high Crimes and Misdemeanors" must be
acts as indictable as treason and bribery, with which
they were, joined in the constitutional language. Martin
distinguished the principal English cases cited by the
House managers to support the nonindictability argument. Harper pointedly reviewed the political motivations of the Hastings trial and all but read into the
record the political commentary that had been a prelude
to the current trial. The arguments were astute and
achieved their intended effect. On February 27 the
court found Chase not guilty on any of the articles.
Chase Trial Established Judiciary's Independence
Whether the Chase trial settled the question of "high
Crimes and Misdemeanors" as being limited to indictable
offenses is difficult to determine. On five of the eight
charges, which to modern observers might be strong
grounds for removal of a judge under contemporary
state disciplinary authority, the majority vote of the
court of impeachment was in Chase's favor. AntiFederalist members of the court took this sort of behavior for granted and were not prepared to condemn
a Federalist judge for what they would expect of an
anti-Federalist one. It was only on the articles charging
clearly nonindictable offenses that a majority to convict
was mustered, but even that fortuitously fell short of the
required two thirds.
The only definite principle established by the Chase
trial is the independence of the judiciary from purely
political attack. As John Quincy Adams, then a senator,
wrote his father, the assault on Chase, had it been successful, "would have swept the Supreme Judicial Bench
April, 1974 * Volume 60
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clean at a stroke." Instead, it became settled that mere
unpopularity of behavior or decision is not a ground
for impeachment.
The judge as tyrant in his own courtroom is an old
problem in Anglo-American legal history. Chase's unbecoming behavior on the bench did not seem reprehensible to the majority of senators in 1805. Would
things change with the passage of time? This was to be
the sole question in the impeachment trial of James H.
Peck, which had as a by-product a legislative limitation
on the use of the contempt power of federal judges.
Had Peck Abused His Authority?
Peck was the United States district court judge for
the District of Missouri. In December, 1825, he held
against certain claimants to lands held under a grant
made by Spanish authorities prior to the Louisiana
Purchase. The case was appealed to the Supreme Court,
which ultimately reversed Peck (10 Pet. 100), but
while appeal was pending the appellants' counsel, Luke
E. Lawless, published a pseudonymous letter in a Saint
Louis newspaper listing a number of alleged errors in
construction of the Roman law on which the Spanish
grants had been based. For trying his case in the press,
Lawless was cited for contempt by Judge Peck, adjudged
guilty, and sentenced to twenty-four hours' imprisonment and eighteen months' suspension from practice.
Lawless sought a remedy by writing his congressman,
alleging Peck's breach of the "good- behavior" tenure.
Impeachment was a long time coming, however. The
first motion by Rep. John Scott of Missouri came in
December, 1826. but it was January, 1830, before
Rep. James Buchanan of Pennsylvania requested permission for the House Judiciary Committee to send for
relevant papers in the case. Even then, the committee
indicated considerable uncertainty as to how it should
proceed on a complaint based essentially on a publication in a privately published newspaper. The single article in the impeachment bill it finally brought before the
Senate was also hazy in its allegations. Peck, it declared,
had published in one newspaper his decree and his
reasons for it, while Lawless had replied with his allegations of error. The contempt citation, the article
sugested, was an abuse of judicial authority because
it was arbitrary and oppressive.
Ostensibly, Peck was charged with violation of the
Eighth Amendment's prohibition of excessive fines and
cruel and unusual punishments, but as a practical matter
the question was whether there was a limit to a judge's
power to determine on his own initiative what was
excessive, cruel, or unusual. As former Attorney General
William Wirt, one of Peck's defense counsel, argued,
mens rea was essential for a conviction; a judge "is not
answerable either civilly or criminally for a mistake of
judgment in his judicial character." Under the Chase
precedent, the argument was hard to refute. Peck was
acquitted, but Congress the following year enacted a
statute (4 Stat. 487) limiting contempt powers of fed-
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eral courts to in-court behavior.
The Civil War presented the first occasion since the
Blount case to charge treason as an impeachable act,
and a federal judge for the Tennessee district was
selected for the test case. West H. Humphreys, who had
held judicial office in both the state and federal systems,
was charged in January, 1862, with having advocated
and supported secession and with then having accepted
a judgeship under the Confederate government. Since
the facts were well established-as to Humphreys and
other erstwhile federal judges in the; South and since
Humphreys made neither appearance nor defense, the
articles were uncontested and the Senate almost mechanically found him guilty on all but one stipulation in one
article.
After the Civil War, Humphreys returned to practice
following Ex parte Garland, 4 Wall. 333 (1867), a
general decision on amnesty for members of the, bar in
seceded states, but he made no attempt to seek judicial
appointment. The case was little more than a recital
of the obvious and perhaps the most forgettable of the
dozen impeachment cases in our national history. But
the next case was to be the most memorable.
Johnson's Trial Produced a Glut of Villains
The impeachment of Andrew Johnson was the product of a combination of malevolences-the assassination
of Abraham Lincoln in April of 1865, which touched
off a wave of hysteria and vindictiveness; the, alienation
of Johnson from any base of congressional power: his
position as an ex-Democrat who had been made Lincoln's running mate as an expedient and as a Southern
moderate in a Radical hotbed; and the twofold objectives of the Reconstruction Congresses: to wreak
vengeance on the prostrate Confederacy and to wrest
back from the executive branch some of the power that
had accrued to it under the demands of war. The divided
nation seethed with hatreds, the president-by-accident
compromised his own courageous stand on principle
by ill-advised personal attacks on opponents who were
too powerful for these tactics, and Congress, which disliked Johnson for various reasons, was in the grip, of
zealots who, in Henry Demarest Lloyd's phrase, had
never in their lives had a noble thought.
The drama of the Johnson impeachment produced
a glut of villains and no shining hero. The president, for
his steadfastness, eventually earned some qualified degree of honor. The same retrospective view consigns
congressional leaders like Benjamin Butler, Thaddeus
Stevens, Charles Sumner, and Benjamin Wade to a kind
of political purgatory or worse. And the blackest figure,
whose treachery in Johnson's cabinet eclipsed his service in Lincoln's, was Secretary of War Edwin M.
Stanton.
The first attempt at impeachment fell short. It began
with a motion by Congressman James M. Ashley of Ohio
on December 17, 1866, and was amended and broadened on January 7, 1867, by another motion by Benja-
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min F. Loan of Missouri. "The impeachment of the of-
ficer now exercising the functions pertaining to the office
of president," said the motion, was necessary for the
proper reconstruction of the rebel states and the extension of the franchise to the freedmen. Translated,
Congress and not the president was to have exclusive
control of the postwar nation.
A desultory debate on the motion, principally revolving about the complaint that no specific violation of
law was set out, occupied the House for all of 1867,
and eventually in December the motion was voted down,
57 to 108. The next month-January, 1868-a new
motion was offered to investigate the president's record
for specific violations of law. This motion referred the
investigation, not to the House Judiciary Committee,
but to Stevens's Committee on Reconstruction. With the
business now in Radical hands, the, plan advanced
rapidly.
Congress Was Confident of Its Freedom
After less than two weeks of ex parte investigation,
the committee reported out a recommendation of impeachment on a series of charges related to Johnson's
attempted removal of Stanton as secretary of war in
violation of the Tenure of Office Act, passed March 2,
1867, over the president's veto. The doubtful constitutionality of the law, which denied the chief executive
the power to remove any of his cabinet officers without
permission of Congress, had not been accepted for
review by the Supreme Court, which, already cowed
by events, was sliding rapidly into its nadir of effectiveness. Confident of its freedom from judicial intervention, the House on February 24, 1868, voted the
impeachment of Johnson, 128 to 47.
On March 5 Chief Justice Samuel P. Chase, himself
obsessed with a desire for the presidency, entered the
Senate chamber to preside at the trial. He and all the
senators, in accordance with constitutional provision,
were specially sworn, whereupon the House managers
were presented: Butler and George S. Boutwell from
Massachusetts, Stevens and Thomas Williams from
Pennsylvania, John A. Bingham and James F. Wilson
from Ohio, and John A. Logan from Illinois. For his
defense Johnson had a staff headed by Henr Stanbery,
who had resigned as attorney general to take the brief,
former Supreme Court Justice Benjamin R. Curtis, and
three highly reputed Washington lawyers. Jeremiah S.
Black, William M. Evarts, and T.A.R. Nelson. It was
symptomatic of the corruption of the era that Black
sought to blackmail the president into authorizing a disposition of some government business favorable to one
of Black's clients. When Johnson refused, Black withdrew and was replaced by another Washington lawyer,
William S. Groesbeck.
Any resemblance to an objective trial is difficult to
discern in the record of the case before the Senate.
Obstreperous senators frequently ignored the chief
justice's attempts to keep order and to exclude irrele-
vant testimony. Johnson's lawyers were granted only a
fraction of the time they had requested to prepare their
case, and the president's own article-by-article response
to the charges was rejected summarily by the House.
When the trial itself was in progress, the Senate moved
to throw open the galleries for the benefit of the orators
on the floor, but when the time came for final debates
on the merits of the case, it ordered the record to be
closed. From beginning to end the proceedings seem to
merit the description of the historian James Schouler:
"a solemn theatrical fiasco."
The eleven articles focused on separate acts of lawbreaking in the attempted removal of Stanton and the
attempted substitution of an acting secretary of war,
while the final article condemned the president for a
speech he had made the previous August challenging
the validity of legislation passed by "a Congress of
only part of the states." At the conclusion of final arguments, the eleventh article was proposed for a test vote
by George H. Willis of Oregon, and on May 16 the
vote was taken. It stood at thirty-five to nineteen--one
short of the constitutional majority.
Ten days later, after furious backstage campaigning
among the senators, the second and third articles were
offered for vote, with the same result. The chief justice
then called attention to one of the rules agreed to for
the trial-the authorized entry of a judgment of, acquittal if no two-thirds majority was recorded for any
articles voted on. The Radicals confessed defeat and
did not offer any of the remaining eight articles. On
May 26 the high court adjourned sine die, and by the
narrowest possible margin, as a later scholar noted,
"the presidential element in our system escaped destruction."
It Was Easy To Find Genuine Wrongdoing
With the Reconstruction carnival of the Johnson
trial, the use of impeachment as a political tool fell into
disfavor. Amid the virulent corruption that infected
government generally in the post-Civil War generation,
it was easy enough to find instances of genuine, wrongdoing. In January, 1876, the House directed its committees on military and Indian affairs to, inspect the
records of these agencies for irregularities or errors,
and two months later the Committee on War Department Expenditures reported to the House "unquestioned
evidence of the malfeasance in office of General William
W. Bclknap," secretary of war in Grant's cabinet. The
gravamen of the charge, was that Belknap, who in 1870
had appointed one John S. Evans manager of the trading post at Fort Sill, had received a total of $24,450
from Evans and others over the following six years. The
House voted impeachment unanimously.
Belknap, meantime, had submitted his resignation.,
and Grant had accepted it. In the final Scnatc vote on
impeachment, twenty-two of twenty-five senators voted
in the negative and declared that they did so not on
the merits but on the conviction that the resignation had
April, 1974 e Volume 60
425
Impeachment Trials
terminated the "civil officer" status of the accused and
thus their jurisdiction. Had they not been so, persuaded,
the inference may be drawn that the uncontested evidence would have won a large majority. As it was, the
vote of thirty-six to twenty-five fell short of the required two thirds.
At the time of the trial, Belknap's supporters insisted
that he was a victim of circumstance, that he was
unaware of the payments from the trading post beneficiary, that the payments had been made at his wife's
suggestion, and that the funds had actually come to her.
While the prosecution was based on the defendant's
being chargeable with knowledge of the events, the
primary importance of the Belknap case is the emphasis
on specific allegations of wrongdoing, supported by the
evidence, as contrasted with the politically oriented
proceedings of the period up to 1868. The contention of
a substantial number of senators voting against conviction-that the resignation of the defendant tolls the
impeachment power-would appear to have been corroborated by Congress's action in the case of George
W. English half a century later.
Swayne's Acquittal Established a Principle
In the first impeachment trial in the twentieth century, the stress was manifestly orn the need for hard
evidence to sustain the charges, although novelties in
procedure continued to arise. In December of 1903
House proceedings were prompted by a memorial from
a state legislature alleging misbehavior on the part of
Charles Swayne, judge of the United States District
Court for the Northern District of Florida. The House
Judiciary Committee was closely divided in its report
in March, 1904, and in, its continued effort to frame a
resolution and articles of impeachment the committee
sought testimony from Swayne and numerous witnesses,
at the same time excluding hearsay evidence and holding irrelevant and inadmissible testimony relating to
matters not considered to be grounds for impeachment.
The first seven articles, which were allegations that
Swayne had padded expense accounts, appropriated a
railroad coach for his personal use without compensation
to the owner, and established residency outside his district in contravention of federal law, were voted by the
House only by a small majority. The remaining articles,
relating to alleged arbitrary and prejudicial use of the
contempt power in out-of-court situations, did win
unanimous House approval. All twelve articles (a thirteenth having been stricken) were negatived in the
Senate trial. Counsel for Swayne entered pleas to the
jurisdiction and a general denial in the first seven
articles of the charges, while the rule in the Peck case
was offered in defense to the remaining articles.
Swayne's acquittal pointed up a firm new principle
in impeachment procedure. When the charges amount
to allegations of criminal conduct, the prosecution is
to be held to the standard of proof beyond reasonable
doubt that would obtain in a judicial process.
426
American Bar Association Journal
Proof beyond reasonable doubt was readily available
in the next case, brought in 1912 against Robert W.
Archbald, a federal circuit judge and judge-designate
for the ill-fated Commerce Court. Pres. William Howard
Taft, in submitting the papers on the Justice Department
investigation of Archbald, noted that "in my opinionand I think it will prove in the opinion of the [Judiciary]
Committee-it is not compatible with the public interests to lay all of these papers before the House of
Representatives until the Committee on the Judiciary
shall have sifted them, out."
On July 8, 1912, the committee unanimously recommended impeachment, and the House accepted the
recommendation, 223 to 1. The articles set out at length
a record of specific malfeasance, with supporting facts,
and the Senate, on resolving itself into a court of impeachment, added several rules of procedure conformable With established rules in several federal courts.
Archbald through his counsel demurred to the articles,
and the House through its managers filed a replication.
Lists of witnesses were then prepared and submitted.
On December 3, 1912, Judge Nicholas Worthington,
one of Archbald's lawyers, stated:
Mr. President and Senators, for the first time in an
impeachment trial in this tribunal the opening statement
for the respondent is to be made at the beginning of the
case instead of at the close of the testimony on behalf
of the managers. We have desired to do, this . . . for two
reasons. One is that the Members of the Senate may
know when the introduction of testimony is going on
what are the questions of fact in dispute,. The other is
that Senators may know from the beginning what we
rely upon as the law of the case.
Familiar enough as reasoning in a judicial proceeding, the novelty of the statement in the court of impeachment was one further indication of the emphasis
on orderly procedure in what had too often in the past
been a political spectacle. The evidence was introduced
and tested, and Archbald was convicted on four of the
first five articles. But no one was heard to accuse
Congress of arbitrary and injudicious action.
Archbald was convicted under the constitutional
stipulation that judges "shall hold their Offices during
good Behaviour." The articles on which he was found
guilty were! specific profiteering from a receivership
established under his jurisdiction, exercise of improper
influence in cases before his court, collusion with
counsel, improper solicitation of credit-but the House
of Representatives in voting impeachment had sternly
added that he had "degraded his high office and . . .
destroyed the confidence of the public in . . . judicial
integrity." Impeachable acts, the House emphasized,
included offenses against the dignity of government.
This was the underlying theme of the final trial, Ritter's
case, before the Senate in 1936.
The primary purpose of the impeachment process is
to remove a wrongdoer from an office of public trust.
If this purpose is served by a voluntary resignation,
Impeachment Trials
IMPFACHMENT TRIALS IN UNITED STATES SENATL
Pay Irnpeadhd
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Louderback's "Good Behavior" Was at Issue
On May 2, 1932, the Bar Association of San
Francisco addressed a letter to President Hoover calling
attention to certain newspaper stories and other statements concerning the conduct of Harold C. Louderback
of the Northern District of California, After an inquiry
by the House Judiciary Committee, the majority re-
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Nove bh, 11 1926 2C.ollti~ with rece...r
minority report was substituted and adopted. On March
3, 1933, the Senate proceeded to trial.
The articles alleged that Louderback improperly discharged a receiver in bankruptcy for refusing to appoint
,o1,,,uF°"
yand a particular individual as attorney for the receiver, that
he allowed extortionate fees and other charges in the
case of other receiverships; and the final article was
a summary based on the "good behavior" standard of
judicial tenure. While this was the most general in terms,
it was the only article to win a substantial, although
less than two-thirds, majority of the final Senate vote.
........ e
It is therefore worth noting:
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Congress has the option of discontinuing the impeachment and perhaps is barred in fact by the jurisdictional
question, as a substantial number of senators contended
in the Belknap case. In the case of Judge George W.
English, the House voted to discontinue the impeachment proceedings on his resignation, since the original
objective-to remove him from the bench if convicted
-had been accomplished by the resignation. The constitutional limit to the impeachment power that it
"shall not extend further than to removal from Office,
and disqualification to hold and enjoy any Office of
honor, Trust or Profit under the United States"-seems
to accommodate this policy.
The principal articles against English charged that
as a judge in the Eastern District of Illinois he had
designated banks in East Saint Louis and Centralia,
Illinois, as depositories for federal bankruptcy funds
and had arranged to transfer the funds from other
depositories on condition of various personal accommodations. The House filed its notice of impeachment on
March 25, 1926, and the Senate announced that plans
for the House managers to begin their prosecution had
been completed on November 3. English submitted his
resignation on November 4. On November 11 the
Senate, sitting as a court of impeachment, heard the
formal request of the managers to terminate the trial.
-ie date
-tm
, -,,'e
of o,laeiion
iitl -ntmolby
in C
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o; Rmeaaa-l
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That the said Harold Louderback as judge . . did
so conduct himself in his said court and in his capacity as
judge in making decisions and orders in actions pending
in his said court . . . as to excite fear and distrust and
to inspire a widespread belief in and beyond said
northern district of California that causes were not decided in said court according to their merits, but were
decided with partiality and with prejudice and favoritism
to certain individuals . . . all of which is prejudicial
to the dignity of the judiciary.
soth,,, -r
April, 1974 * Volume 60
427
Impeachment Trials
Louderback was acquitted on all articles, but the
readiness of the Senate to make a conviction, turn on a
summary charge of "good behavior"-thar charge being
greater than the sun of the prior charges-was to be
the pivotal issue in the final impeachment trial of record
to date.
Ritter Was Tried on All Seven Articles
Halstead L. Ritter, judge for the Southern District
of Florida, was impeached on March 3, 1936, on
seven articles charging fee splitting and tax evasionnone of the first six articles mustering a two-thirds
majority for conviction. The seventh article stipulated
that the "reasonable and probable consequence of the
actions or conduct .
. is to bring his court into
scandal and disrepute, to the prejudice of said court
and public confidence in the administration of justice
therein, and to the prejudice of public respect for and
confidence in the federal judiciary."
Ritter. by his counsel, moved to strike this article
on the ground that it "constitutes an accumulation and
massing of all charges in preceding articles upon which
the court is to pass judgment prior to the vote on
Article VII, and the prosecution should be required to
abide by the judgment of the Senate rendered upon such
prior articles and the Senate ought not to countenance
the arrangement of pleadings designed to procura a
second vote and the collecting or accumulation of adverse votes, if any, upon such matters." The impeachment court denied the motion and proceeded to, try
the case on all the articles, with the seventh proving at
the last to prov ide the conviction.
It is interesting to note the disparity of voting, by
supplementing the vote summary in the table with the
"not voting" record:
Articles
Guilty
Not Guilty Not Voting
Article I
55
29
12
Article II
52
32
12
Article Ii
44
39
13
Article IV
36
48
12
Article V
36
48
12
Article VI
36
47
13
Article VII
56
28
12
It is evident that if one of the nonvoting senators had
joined with the majority in Article I, or if four had
joined with the majority in Article TI, Ritter would
have been convicted on three counts instead of onewhich is only to say that the one-vote majority on the
final article is not all that fortuitous. At the time, however, Warren Austin of Vermont addressed the presiding
officer and suggested that since the vote did not include two thirds of the senators present, it was invalid.
The court ruled him out of order. Ritter later sought
to test the issue in court by a suit for back salary, but
the Court of Claims dismissed for want of jurisdiction
(84 Ct.Cl. 293 (1936)), and the Supreme Court
denied certiorari (300 U.S. 668). So on a note both
tenuous and querulous ended the most recent impeachment trial in the records of the Senate.
428
American, Bar Association Journal
Social Ethic Cannot Be Prescribed
This, to date, has been the record of the impeachment
process in Congress since the first decade of the Republic a record that began in a well-established English common law tradition of political inquisition,
reached a nadir in the vindictive ordeal of Andrew
Johnson, and for the past century has groped for
standards of judiciousness that have yet to crystallize
into uniform or consistent rules of procedure. The
emphasis since 1876 has been on the type of evidence
cognizable in a judicial proceeding. Defendants in the
twentieth century have been exclusively judicial personnel. Pressure for the alternative of resignation-the
case of former Vice President Spiro Agnew being conspicuous-has tended to replace impeachment as a
means of dealing with presumably flawed qualifications
for nonjudicial offices.
One rather evident reason for the still inchoate
definition of impeachable conduct is the nature of
public service itself-a combination of legal guidelines
and social ethic. The legal guidelines are presumably
amenable to specific procedural formulas; the ethic in
the nature of things cannot be. Yet the ethic may be
the essence of the issue, from which the impeachment
process must arise. If this is granted, it is simply to
say that impeachment depends for its justification on
the degree of responsibility exercised by those to whom
it falls to conduct the process. A
Hearing Examiners Needed
T
HE Bureau of Hearings and Appeals of the Social
Security Administration is conducting an examination to hire more than 250 lawyers to be hearing
examiners under the supplementary security income
program of Title XVI of the Social Security Act. The
examination will consist of a detailed application, responses to qualification inquiries, a written demonstration, and an oral interview. The dates of the written
demonstration phase will be determined later according
to the number of applications filed and the processing
cycle.
Appointments will be made at GS-13 grade level
($20,677 to $26,878) and the GS-14 level ($24,247 to
$31,519). The positions will .be located in cities
throughout the United States.
To qualify one must be licensed to practice law and
have at least four to, six years, respectively, of judicial,
trial, administrative law, or other legal experience.
Further information and the examination announcement
may be obtained from the Bureau of Hearings and
Appeals, Social Security Administration, S.S.I. Task
Force (326 Webb), Box 2761, Washington, D.C.
20013.